The Need for, and the Growth of, Delegated Legislation in India
Chapter -Nine
Syllabus topic 8, "Judicial Review Delegated Legislation"
Pages 384 to 386 of 430
In one line
India inherited the practice, entrenched it after 1950, and now makes far more law by rule than by statute. That is the growth of delegated legislation, and this chapter is about why it happened and on what constitutional footing it rests.
In the wording a student can write in an exam: delegated legislation in India rests on Articles 245 and 246, which confer plenary legislative power on Parliament and the State legislatures; a plenary power includes the power to delegate, subject to the rule that the legislature may not part with its essential legislative function, and the practice grew with the planned economy, industrial licensing, control orders and, since 1991, with the regulatory State.
The constitutional foundation
Article 245(1). Subject to the provisions of this Constitution, Parliament may make laws for the whole or any part of the territory of India, and the legislature of a State may make laws for the whole or any part of the State.
Article 245(2). No law made by Parliament shall be deemed to be invalid on the ground that it would have extra-territorial operation.
Article 246. Distributes legislative power between Parliament and the States by the three Lists in the Seventh Schedule.
Two consequences follow for this topic. A delegate can have no more power than the legislature had to give, so a rule on a subject outside the legislature's List is void whatever the parent Act says. And because the legislative power is plenary within its field, it carries with it the power to delegate, subject to the essential legislative function rule.
The Indian sequence
Before 1947. The Government of India Act 1935 and the wartime Defence of India Rules produced delegation on a scale that had no precedent, and the machinery survived independence.
The Committee on Ministers' Powers. The English committee of 1932, whose report is the standard starting point for the topic, classified delegated legislation, identified the Henry VIII clause and recommended safeguards. Indian writers use its vocabulary constantly.
1950. The Constitution did not forbid delegation, and In re The Delhi Laws Act, 1912, AIR 1951 SC 332, settled within a year of the Constitution that it is permissible so long as the essential legislative function is retained.
The planned economy. Industrial licensing, import and export control, essential commodities, price and distribution control, and the nationalisation statutes, each producing rules and control orders in volume.
The Committee on Subordinate Legislation. Constituted in the Lok Sabha in 1953 and in the Rajya Sabha in 1964, with counterparts in the State legislatures, and dealt with in [Legislative Control: Laying and the Scrutiny Committees].
1991 onwards. Liberalisation replaced ownership with regulation, and the regulators legislate: the Telecom Regulatory Authority, the Securities and Exchange Board, the electricity commissions. Cellular Operators Association of India v. Telecom Regulatory Authority of India, AIR 2016 SC 2336, is the modern case, and it shows the volume and the stakes.
The Need for, and the Growth of, Delegated Legislation in India
The scale, and why it matters
An Indian Act of thirty or forty sections routinely carries rules running to hundreds, and behind the rules are regulations, schemes, notifications and circulars. A practising lawyer spends far more time on rules than on statutes. That is why judicial control of delegated legislation is not a minor topic appended to administrative law but a quarter of MU's syllabus.
The two questions the growth raises
How much may be delegated? The essential legislative function rule, worked in [The Essential Legislative Function: In re Delhi Laws Act] and [Excessive Delegation after the Delhi Laws Act].
How is what is delegated controlled? Legislative, procedural and judicial control, which are the last chapters of this book.
A worked example
Parliament passes an Act on digital personal data with forty sections, of which twenty-six say that something shall be as may be prescribed. The Central Government then makes rules covering consent, notice, security safeguards, the constitution of a board and the procedure before it.
The delegation is constitutional in principle: a plenary power carries the power to delegate. The question in each instance is whether the section leaves the policy to the Government or merely the machinery. Prescribing the form of a consent notice is machinery. Prescribing which processing is exempt from the Act altogether would be policy, and a court would ask whether the Act itself supplied the standard.
What this does NOT mean
It does not mean Articles 245 and 246 authorise delegation in terms. They confer plenary power, and the power to delegate is an incident of it.
It does not mean a delegate shares the legislature's competence. A rule on a subject outside the List is void whatever the parent Act says.
It does not mean the growth is uncontrolled. It is controlled by the three families of control, though imperfectly.
Quick revision
Articles 245 and 246 confer plenary legislative power, and a plenary power carries the power to delegate, subject to the essential legislative function rule. The Indian sequence: the Act of 1935 and the wartime rules, the Committee on Ministers' Powers vocabulary, the Delhi Laws Act reference in 1951, the planned economy and its control orders, the Committees on Subordinate Legislation from 1953 and 1964, and the regulatory State after 1991 with Cellular Operators as its modern case. The growth raises two questions: how much may be delegated, and how is it controlled.
Test yourself
1. Where does the power to delegate come from? From the plenary legislative power in Articles 245 and 246; a plenary power carries the power to delegate, subject to the rule against parting with the essential legislative function.
The Need for, and the Growth of, Delegated Legislation in India
2. Can a rule deal with a subject outside the legislature's List? No. A delegate can have no more power than the legislature had to give, so such a rule is void whatever the parent Act says.
3. What changed after 1991? The State moved from owning industries to regulating them, and the sectoral regulators became major sources of delegated legislation.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.